Principles of Fair Chance Hiring [Draft]
Recruiting people with a criminal record
Background
In 2015 Unlock started a project, supported by the Esmée Fairbairn Foundation, focused on challenging
the discrimination that people with convictions face in employment. A key part of this work is supporting
employers to develop and implement fair and inclusive policies and procedures that enable the
recruitment of people with criminal records.
Why is this important?

Over 10 million people in the UK have a criminal record, with around a quarter of people claiming
unemployment benefits having received a criminal record in the last 10 years, and yet 75% of
employers discriminate against applicants on the basis of a criminal record.

People with irrelevant criminal records are, as a result, often discouraged from applying for jobs.

However, employers cannot afford to ignore the diverse talent of people with criminal records.
Introduction to the ‘principles’ of Fair Chance Hiring
In our approach to employers, we’re promoting ‘Fair Chance Hiring’ policies. These originate from the
United States and have ‘Ban the Box’ at the heart of changes in the recruitment practice of employers.
One of the first steps is to develop a set of high-level principles for putting ‘Fair Chance Hiring’ into
practice, and this document shows our current thinking. The principles have been developed in
consultation with a range of stakeholders including employers, recruitment professionals and data
protection experts, and people with a criminal record. The principles are designed to be used as a
benchmark for employers in ensuring the fair treatment of people with criminal records.
The principles are currently in DRAFT format. We know there’s more to do in adding references and
providing more detail, but we have made them publically available at this stage so that we can consult and
receive feedback, before publishing the finalised version later in 2015.
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Let us know what you think
We’re keen for thoughts, comments and suggestions on these principles. In particular, we’re keen for
answers to the following questions:
1. Do you agree/disagree with any of the principles?
2. Do any of the principles need editing or improving?
3. Would you add any other principles to reflect other important considerations?
4. How else do you think the principles could be improved?
Please email your comments to [email protected] by Friday 25th September 2015. Responses will be
treated in confidence.
Next steps
We are working on helping employers to put these principles into practice by developing a resource centre
for employers and recruitment professionals, and working closely with a small number of larger
employers. As part of this work, we will be looking to add more detail to each of the principles, and we
hope that the feedback we receive from this draft will help us in this process.
If you’re interested in receiving updates about this work, sign up to our mailing list and tick to receive
“News/updates for employers and recruiters”
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Principles of Fair Chance Hiring [Draft]
1. Do you need to ask about criminal records?
Ask “why are we asking about criminal records?” Being clear about the purpose of this question will help
you to assess whether your process achieves it or not. If you decide you don’t need to ask, and if you don’t
want to, then there’s no need to read any further as in most cases, there is no legal obligation on you to
ask about criminal records.
Many employers choose not to ask about criminal records as they do not believe it adds value to their
recruitment process. Instead, they have measures in place to properly manage and oversee their
employees, recognising the major shortfalls that relying on criminal records has in terms of reducing
‘risk’ in the workplace. Asking about criminal records means that you’re processing sensitive personal
data and therefore have legal obligations under the Data Protection Act 1998.
2. Be up-front by having a clear policy
Have an ‘Applicants with a Criminal Record’ policy with links to that document or webpage from all your
vacancies. This policy will set out how you deal with applicants who have a criminal record. It will make it
clear whether you will ask about criminal records, and if so, when this will happen. If you carry out criminal
record checks, it can state which roles are eligible for one, and for each role, which level of check will be
asked for (e.g. basic, standard or enhanced). It will provide useful links to advice to help applicants answer
the questions you ask, and explain your approach to those who disclose.
If you are carrying our checks through the Disclosure and Barring Service, you have to have a policy in
place. Many employers have a policy, but often it is a standard ‘template’ that is outdated, doesn’t
properly reflect their process, nor is it easily available at the point when an individual is deciding
whether to apply.
3. Defer questions until after a conditional job offer
If you are going to ask about criminal records, make sure you remove the ‘tick box’ from your application
form. You could instead ask at a later stage in the recruitment process after a conditional job offer.
Many employers have “banned the box” – that is, removed the question about criminal records from the
job application form, deferring the question until later in the application process. This allows the
applicant to be considered on their merits first.
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4. Be clear in any questions you ask
For any questions that you may ask, be clear what you want the individual to disclose. Don’t ask complex
legal questions. Consistency in the questions that you ask will help to avoid confusion.
For most jobs, it should be made clear that applicants do not need to disclose convictions that are
‘spent’. Being clear to applicants is important in complying with legislation (see below).
5. Follow rehabilitation & data protection legislation
If you are asking about criminal records, for most jobs you are not allowed to consider convictions that are
‘spent’ under the Rehabilitation of Offenders Act 1974. Also, you would be acting unfairly and unlawfully if
you were to carry out a level of criminal record check that the role is not eligible for.
Employers that breach the Rehabilitation of Offenders Act by carrying out unlawful checks or taking into
account spent convictions would be acting unfairly/lawfully. Furthermore, Section 56 of the Data
Protection Act makes it a criminal offence to require an individual to provide a copy of their police
record. Instead, employers should use official criminal record checks through Disclosure Scotland or the
Disclosure & Barring Service, depending on the role.
6. Be proportionate
Disclosure laws often mean that people can still be legally required to disclose old and/or minor
convictions. To ensure that you comply with data protection legislation and do not consider information
that is no longer relevant to the role, do not ask about or consider convictions or cautions that were given
more than 7 years ago (or, if the person was in prison, 7 years after release). Within the last 7 years, think
about what types of offences are relevant to the work being undertaken. Are there certain convictions
which you don’t think are relevant and so don’t need disclosing?
This reflects the best research1 which shows that criminal convictions which are more than 7 years old
are not predictive of a person’s likelihood of committing a further offence. The relevance of a conviction
within this time period will depend on the job, the criminal record and the individual.
1
Kurlychek, M. C., Brame, R., & Bushway, S. D. (2006). Scarlet letters and recidivism: Does an old criminal record predict
future offending? Criminology and Public Policy, 5, 483-504
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7. Be fair
Where it’s possible that you might have to refuse an individual due to their criminal record, give them an
opportunity to explain in person and address any concerns you might have. There are very few situations
where you legally would be unable to employ somebody with a criminal record. Your policy should inform
your decision making; avoid blanket bans; treat any information disclosed to you as confidential and share
it with specific colleagues only where necessary.
Written information, whether official or provided by an individual, is difficult to put into context. Where
you have concerns about an applicants’ criminal record, arrange a face-to-face discussion.
8. Consider criminal records in context
Make sure that those involved in recruitment are knowledgeable and confident in dealing with criminal
records. Consider specific training for those regularly involved in talking to applicants about their criminal
record and making judgements based on information disclosed. When dealing with specific applicants,
don’t limit a discussion about their criminal record just to the behaviour which led to their arrest and
conviction. Instead, focus most on what the applicant has done since; encourage them to discuss their
rehabilitation and the positive steps they’ve subsequently taken.
It is important that staff with key recruitment responsibilities and decision-making based on criminal
records disclosed by applicants feel confident in the judgements they’re making.
Research shows that what individuals go on to do after their last conviction is a good indicator of their
likelihood to stay out of trouble in the future.
9. Be understanding of discrepancies
Don’t assume that any discrepancies between what the applicant discloses and what a criminal record
check states, means the applicant is lying.
Criminal records are complex. Experience shows that while people with criminal records may be able to
honestly and accurately explain the behaviour that led to their arrest, they can often be confused about
exactly what happened next, and especially what was recorded officially, and so don’t always disclose
this information accurately.
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10. Recognise the limitations of self-disclosures
As many applicants are confused about what their criminal record is and what they are required to
disclose, if you’re using criminal records, consider not asking applicants to self-disclose. Instead, wait for a
formal criminal record check, and use this as a source for any necessary discussions about the applicant’s
criminal record.
This approach avoids the problem of an applicant unintentionally providing the wrong information
when asked to self-disclose (either by under-disclosing information through ignorance but which will be
disclosed, or over-disclosing information which an employer is not entitled to know). This is a process
which is used by many organisations that regularly undertake enhanced criminal record checks. Such an
approach can be made clear in a policy that is made available to individuals at application stage, and
can be followed by a face-to-face discussion once a formal check has been undertaken, if there are any
concerns.
11. Document your decision-making
Keep a record of the process you go through and the considerations you give. This enables you to explain
your decision-making and make confident recruitment decisions.
Employers can sometimes be worried about being held liable if things go wrong in the future. Even
though this rarely happens in a way which is actually related to the applicant’s criminal record, having a
documented decision-making process provides confidence in the decisions that you make.
12. Measure the impact and effectiveness
Set up processes that enable you to monitor and review the impact of your recruitment of people with a
criminal record. For example, periodically review past internal decisions without attaching this to personal
files. Keep data that enables you to understand the number and type of people with convictions that you
recruit.
It is important to keep your policy and processes under review. For example, by looking at the
judgements that different decision-makers have made within your organisation, you will be able to
improve your fairness and consistency when dealing with applicants who have criminal records.
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